MPAA Asks For Megaupload Data To Be Retained So It Can Sue Users... Then Insists It Didn't Really Mean That

from the how-not-to-win-fans-or-build-businesses dept

There are days that the actions of the MPAA just make you shake your head and wonder just what goes through the minds of the lawyers running that insane asylum. The latest is the news that they're considering suing Megaupload users directly, as if their reputation wasn't already mud. The details actually have to do with the fight over whether or not the data on Megaupload's servers is going to be deleted. There was a point, soon after the shutdown, when it was suggested that, due to a lack of anyone able to still pay the bills, the hosting provider that Megaupload used, Carpathia Hosting, would soon wipe the servers clean. That struck me as odd, because I would have thought that the data on those servers represented evidence in a criminal case -- but for reasons still not clear, the government insists it has no need for the data and that Carpathia is free to delete it. I won't even begin to speculate over the fact that the person who sent the letter to Carpathia suggesting this also happens to be the BSA's former head anti-piracy VP. An ex-anti-piracy exec for an industry lobbyist, now running a criminal anti-piracy case, basically telling the data center to delete evidence? Hmm...

Others, of course, were concerned about both the evidence that could exonerate Megaupload as well as the legitimate files that were going to be lost -- so there was an effort made to try to have the files retained, and the hosting firm has said (for now) that they won't delete the data, despite the fact it is costing the company $9,000 per day to maintain these servers and the 25 petabytes of data they contain. But it wants to.

So here's the surprise. Those fighting to keep the data have an unexpected ally: the MPAA. Yes, you see the MPAA wants to keep its options open and is considering directly suing users who may have used Megaupload for infringement -- and for that to work, they'd need that data to remain available. This came out in a filing by Carpathia to the court, in which it notes that there is significant interest in keeping the data around, but it wants out of the burden of paying for all of this and having to retain the data itself. The filing notes that Megaupload itself wants the data for its defense, the EFF wants to help users get legit files back... and the MPAA wants the data to sue people. Apparently, unbeknownst to the public until now, the MPAA sent Carpathia a letter arguing in agreement with Megaupload and the EFF that the data shouldn't be destroyed, but only because the MPAA wants to have access to the data in case it decides to go hogwild and completely and permanently destroy its reputation by suing users directly. From the letter the MPAA sent Carpathia:

Independent of the ongoing criminal proceeding, the Studios have civil claims against the operators of Megaupload, and potentially also against those who have knowingly or materially contributed to the infringement occurring through Megaupload...

... In light of the potential civil claims by the Studios, we demand that Carpathia preserve all material in its possession, custody, or control, including electronic data and databases, related to Megaupload or its operations. This would include, but is not limited to, all information identifying or otherwise related to the content files uploaded to, stored on and/or downloaded from Megaupload; all data associated with those content files, the uploading or downloading of those files, and the Megaupload users who uploaded or downloaded those files; all data reflecting or related to payments to third parties (including Carpathia) by the Megaupload operators; all data reflecting or related to payments to the Megaupload operators, including by users and other third parties, all electronic records regarding communications by the individuals involved in Megaupload's operations; and all internal documents and communications regarding Megaupload.

Of course, recognizing just how bad its own lawyers' statements are on the matter, the MPAA has sent in its PR folks to try to clean up the mess. Almost immediately after David Kravets at Wired published the original article highlighting this, MPAA PR people started calling him insisting that it wasn't true at all. MPAA PR VP Howard Gantman told Kravets that the MPAA has no intention to sue users, despite the clear language of the letter it sent Carpathia.

“The reason we did that filing so that there is a possibility that litigation might be pursued against Megaupload or various intermediaries involved in Megaupload’s operation. We’re not talking about individual users...”

That's not what the plain language of the letter itself clearly states -- but never let facts get in the way of a good yarn spun by MPAA PR people desperately trying to make the organization seem not 100% evil. But, this is how the MPAA thinks: lawyers shoot their mouths off with threats first, and the PR folks are left to do cleanup. That's what happens when you put the lawyers in charge, without any real knowledge of technology, business or just how ridiculously bad they make themselves look with their extreme positions. And then they wonder why no one sides with them in debates like the one over SOPA. Perhaps it's because their position is so crazy that anyone with the slightest bit of common sense would have known to stay miles away. But that's not how the MPAA rolls. It goes to crazytown and beyond, and then just denies it was thinking about suing users, despite claiming exactly that.

I love this kind of stuff. If the MPAA's and the RIAA's feet are lodged so far into their mouths while their heads are lodged so far up their anuses, it will make it more difficult for them to spout off nonsense and get legislation passed. Doing both takes some tremendous skill.

You want to protect the safe harbors clause by saying a service provider is not liable, then who is liable for infringing content if not the user who uploaded it? If you post infringing content and share it (nevermind whether or not the increased attention is a good thing for the rightsholder), then you are liable for copyright infringement. I'm all for protecting the service provider to let them create amazing new tools, but when a tool is abused, you can't freak out when the person who knowingly committed a crime gets punished for doing so. That's just not how this works.

Re:

I don't see how Mike is saying that punishing the law breakers is bad (as long as they are actually breaking the law). What he is saying here is that the MPAA looks like a group of idiots for contradicting themselves.

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If the MPAA has proof that some infringing was going on by a particular user, it should be able to present the evidence to a court and get the files of THAT user. The MPAA should not be able to get all the files and go through them looking for someone who might have been infringing.

Re: Re:

The way it works is that the MPAA will first file a civil suit against Megaupload. It will then be able to see all of those files. As part of the review they will then find out the identity of the Megaupload trading partners and likely others. The paid uploaders are in big trouble.

My look at it

Sorry, but the two statements do make sense together. Let's look at what they potentially want to sue for
and potentially also against those who have knowingly or materially contributed to the infringement occurring through Megaupload...

The data they want kept is an invasion of privacy, let's not forget that Sony got all the IPs last year in the Geohot case, even though they never sued the individual users. What they likely want to sue for is contributory copyright infringement, which is when a person meterially induces someone to infringe, such as providing labor or services to do so.

With that knowledge, let's read the clarification;

“The reason we did that filing so that there is a possibility that litigation might be pursued against Megaupload or various intermediaries involved in Megaupload’s operation. We’re not talking about individual users...”

It goes perfectly with the previous statement and the definition of contributory infringement.

win-win-win

A simple solution: Megaupload will hand the data over to the MPAA -- strongly encrypted. Megaupload will retain the keys until the courts decide whether the files are legal evidence or not. And woe betide the MPAA if the files get lost or damaged in the meantime.

Re: win-win-win

You can't hand them the data even if it's encrypted. They have no right to the files that are not infringement. They also have no right to go through the files to see if they are infringement or not. They would have to have law enforcement determine if the property was rightfully theirs first before it handed it over to them and with 25 petabytes to go through that would likely take quite some time. This is probably why the government sent the "you can destroy" letter because if it happened (even if they wasn't supposed to happen) they would just say "Oops! Sorry, we shouldn't have done that but there's nothing we can do about it now." However it would be an interesting turn of events if the government would turn to the MPAA and say "We can't give it to you, but if you want it preserved you can pay the bill" once the legitimate owners of their files are finished retrieving them.

Re: Re: win-win-win

"You can't hand them the data even if it's encrypted. They have no right to the files that are not infringement."

Is that a legal statement? Assuming Megaupload knows how to keep keys secure (a big assumption, I admit), MPAA's possession of the ciphertext wouldn't do the MPAA any good or the owners any harm. Then the sifting could begin: the MPAA passes a small block of data to Megaupload, which decrypts it and passes it to the judge, who looks over it and decides whether it should be made public, returned to a user, or destroyed. Then the MPAA passes another small block. This could continue for quite a while...

Re: Re: Re: win-win-win

Well, there are very strong data privacy laws in the EU. Some of that data belongs to or involves EU citizens, so they could get into trouble over here for having it without authority, let alone using it.

fucking insane

They may be backtracking now but its yet another insight into how they think.
They have somehow elevated the value of their content in their own minds to something that MUST be paid for by someone if they have set eyes on it and using multiples of 100s they decide that you owe them say $975,000 for uploading a couple of movies to a file locker :)))
They are fucking insane , just thank God they never got their hands on PIPA / SOPA , ( yet ) .

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Anyone who is for MPAA doing that suing: remember this

Megaupload was shut down ILLEGALLY in the first place. The "evidence" used was flimsy at best, non-existent or invented at worst. The trial is not partial as it has anti-piracy execs involved in parts of the proceedings that should be un-biased, and many legal steps by the law enforcement were done incorrectly or not at all. I believe there are some previous Techdirt posts on this. Now, MPAA wants to obtain data from an illegally done raid for massive lawsuits against everyday people?

Two wrongs--or any number of wrongs for that matter--do not make a right.

Also, from the context of that letter, MPAA wants to sue ALL the users of MegaUpload, regardless of whether that user infringed with MegaUpload or not.

As for that ridiculous PR statement, it's ignoring DMCA safe harbors provision (not the first time MPAA has ignored the safe harbors provision).

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Tell me...what's more important for a business? Chasing and suing people for downloading...or trying to actually improve sales?
I have yet to see a single initiative by the MPAA/RIAA to improve sales that was actually well thought out (e.g. the go-to-mall-scan-QR-Code-order-physical-DVD-in-mail idea that had so much fail I had to do a facepalm after reading it).
I'm pretty sure if the MAFIAA actually tries hard enough, they can stop copyright infringement. But guess what the end result will be?
A destroyed Internet, tens of millions of pissed off people who will en masse never buy a single MAFIAA product ever again.

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whatever it is that the MPAA ends up doing, it will only be to the benefit of the MPAA. if there was/is the slightest chance that retaining data could be detrimental to the MPAA, there will be a flurry of letters desperately trying to get the data destroyed again! imagine what they will say if they fail!

Running the Insane Asylum

"There are days that the actions of the MPAA just make you shake your head and wonder just what goes through the minds of the lawyers running that insane asylum"...

Is it just me, or do these people behave more like mobsters than businessmen? Between the insane price demands they make for sites/businesses/individuals that want to do business with them, which are so outrageous that they make the "negotiations" over contracts look like nothing more than a protection shakedown, to their willingness to sue every individual they can point to for far more money than they should be entitled to (kind of like "cross me and I'll destroy your life"). to the lengthy record of stealing and cheating the very artists they supposedly represent out of the money they've collected on their behalf, they are nothing more than gangsters...what more do they have to do to prove it? Walk around in pinstriped suits carrying submachine guns in violin cases?

Re: Running the Insane Asylum

They believe too many of the bad New York mob films they made where the mobster/protection guys all looked like male models and the women were gorgeous models so the baddie changed his mind about shooting her.

The main difference is the the MPAA doesn't change it's mind if you're a gorgeous model or not.

Re: Re: Running the Insane Asylum

Step 1 - Invent Criminal Case to bring your target to the US so you can then...
Step 2 - File a several kajillion dollar civil suit.

Collect money for damages at each trial, because there is no way possible people would pay for MegaUpload if not for our content. Claim anyone who says differently is just a freetard pirate out to destroy America.

Try and scrub server logs showing MegaUpload being used by **AA's IP addresses, US Gov Addresses, and disguise the fact some of the "infringing" material they were aware of only because they placed it there.

Decide that things are looking bad, the Government can't find the fabled billions of dollars Dotcom/Mega is to have been holding. Look for a new revenue target, the users. While going after them originally would have been a PR nightmare, we have started this scenario to make more money and we can't find it. The end users HAVE to be much richer for having downloaded a movie, our reports show that making a copy of one of our films creates money out of nothing, and it is owed to us.

Hey, anyone know how many 2 TB drives it would take ta hold 25 PB of data? Might not be a bad idea for folks ta hack in and make their own backups of the MU data. Then just post it on a new site and it's back on the 'net and ain't nothin' the MAFIAA maroons can do about it.

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1 PB = 1,000 TB. So, using 2TB hard drives, you'd need 500 separate drives for 1PB. Multiply by 25, and you'd need a total of 12,500 2TB hard drives.
Hmm. Wonder if you can run that amount of drives in a single RAID configuration.

If the MPAA decided to sue the users of Megaupload I don't think it would really do much more damage to their reputation. I mean, people can only hate them so much, and they're pretty much there already.

MPAA - the power

Seems that MPAA, if they have the megaupload user list, can then arbitrarilly choose who they want to zap by suing, and who they can let go. Quite a bit of arbitrary power over a bunch of citizens. Amazing how far copyright is taking us towards total censorship. If MPAA sues, they should obviously sue all the violators - not just the ones they don't like, not just the ones they decide should come to justice. Can MPAA take over the law's job and decide who is treated like a criminal and who isn't? Seems a lot of power given to them.

Re: MPAA - the power

There is no restriction on who you can sue that has wronged you. You are not compelled to sue everyone or anyone. You can pick and choose based on who you "like" or "dislike". The ISP's probably knows who everyone who posts on Techdirt and will happily provide that to the AA's for cross-referencing.

'... In light of the potential civil claims by the Studios, we demand that Carpathia preserve all material in its possession, custody, or control, including electronic data and databases, related to Megaupload or its operations.'

Emphasis mine. They don't ask, they don't get a court order for it, oh no, they demand that Carpathia retain the data so they can use it later. Now if in the next line they then said that they were willing to pay the costs to retain the data, that would be one thing, but I just don't happen to see that part for some reason.

Someone was definitely on a power trip when they typed that one up.

I'm rather surprised that when they sent out the first letter they didn't include a part claiming that it would be illegal for them to show it to anyone, though I imagine if they thought they could get away with it something like that would be auto-included on anything and everything they send out.

Abstinence is the only way to be 100% sure

A rather large hollywood type company that has a habit of making so so movies recently made a investment of 250 million dollars in a mega flop called Shaun Conner or something. The movie may be really good or really bad but I wont know because I refuse to go to any theater and support the pond scum that is trying to force toxic laws that go against the constitution on us. (mayhaps I am not alone in this endevour?)
Since money is the only language these dolts sabe I suggest a BOYCOTT of all new offerings from all of them until such a time as they appear to comprehend the error of their ways.
If you don't give them your tacit approval (read 'buy their crap) the point may become more apparent to them.
This may or may not work but abstinence is the only way to be 100% sure they have a chance to get the message.

Abstinence will only lead to more claims about piracy

Say you got a majority of the consumers to adhere to this boycott. But if you don't get ALL of the uploading infringers (aka pirates) to join in, HELLywood will finally be able to present REAL NUMBERS about shrinking revenue AND they will obviously blame piracy for it.

Rethinking it, they will blame it on piracy no matter what - even if all infringers suddenly cried out in terror and died.

Re: Abstinence is the only way to be 100% sure

Did I read this right, there are 60,000,000 users of MegaUpload?

I read the headlines somewhere that there are 60,000,000 users of MegaUpload. If most, as alleged, are involved in piracy then can piracy really be a crime? If government is of the people, by the people, for the people and the people want to share digital content, then should it really be a crime?

I read the headlines somewhere that there are 60,000,000 users of MegaUpload. If most, as alleged, are involved in piracy then can piracy really be a crime? If government is of the people, by the people, for the people and the people want to share digital content, then should it really be a crime?

Right on brother. Then let's put paying taxes up for a referendum. Then abortion, capital punishment and all the other shit people don't like.

#1 - An MPAA group goes against what they are fighting for. www.acidplanet.com owned by Sony Creative Software (originally Sony Media Software upon the purchase of Sonic Foundry) is a subsidiary of Sony, focused primarily on their line of media production software. Additionally, they produce a series of audio loops, sound effects and other media for use with their software. The server of that site HOLD number of illegal copyright files that are unathorized by the bands and artist. This is in violating of ALL policies out there. Since an MPAA group is actually hold a site and server with illegal posting. So not the MPAA get sued for all the music on that site.

#2 - The MPAA and RIAA used sites like megaupload and others to distribute mixtapes on their artist and free promotional singles. So in turn, they are the MAJOR criminals in the case.

#3 - People would both formats like 8-tracks, cassettes, mini-disc, reel-to-reel, quad vinyl, quad 8-tracks, etc. were the major companies forces customers whom paid high costs on equipment to play these formats. They discounted the formats. Some go to MPAA doing 8mm films to VHS to VHS-C to DVD to Blue-Ray to Digital HD. They owe the customer trillions of dollars spent on the equipment to play them.

Both the MPAA and RIAA need to be counter sued due to their activities that are very mafia like. They HAVE broken the law and need to play the AMERCIAN public quad-trillions of dollars. The MPAA and RIAA are monolopies business now and when someone wants to Do It Themselves. The MPAA and RIAA sue them. It is time that both companies disolves and PLAY the USA customers they quad-trillions of dollars for using illegal business tactics.

They won't sue for using Megaupload, but

They'll just have this great big stockpile of data that they can use for propaganda, lobbying and of course correlating (hopefully) with potential Bittorrent lawsuit candidates and using it as evidence against them. Or to send you settlement letters. Guess it really depends on how much info was given to them in any connection logs and the account creation, then how cooperative the payment company or email host are. I haven't used MU.

Totally legitimate lawsuits

@Titanium DragQueen - files downloaded to a non-USA country from servers in another non-USA country, to an IP address that could have been used by multiple persons in a household (provided the suing party could even get legal access to the logs from those non-USA based servers - if they even existed by the time they decided to sue) ... then proving a specific person was using the computer in that household at that specific time (proving beyond any reasonable doubt that computer/ip address wasn't hacked and remotely used to download those files using a remote control app) What laws would apply -- certainly not US laws if all actions occurred outside USA jurisdiction. I'd say only USA citizens need to even remotely worry about lawsuits.

@RosalineAng - 1. Only if they get full access to all the server files + (PLUS) 2. Only if it was a MPAA member property + (PLUS) 3. Only if they can legally get access to your ISP logs + 4. They can prove it was you (physically using the computer) at the specific time and dates in the log and bsolutely no one else had access to it at that time and date... etc ... a lot of if's.